Agency 'disobeyed' law on Savannah River permit, SC chief justice says

COLUMBIA — South Carolina Supreme Court justices put a state agency attorney on the defensive Tuesday over whether the state Department of Health and Environmental Control acted illegally when it granted a permit in support of Georgia’s harbor deepening.


Chief Justice Jean Toal said DHEC staff violated the law last fall. She made the assertion during oral arguments of a lawsuit challenging the agency’s authority, which was brought by the Southern Environmental Law Center on behalf of environmental groups. The lawsuit contends the Savannah River Maritime Commission, a panel created by the Legislature in 2007, instead has authority over dredging matters. That commission was also represented Tuesday in the suit against DHEC.

Toal also said the DHEC board “rubber-stamped” a settlement that arose from last-minute negotiations between DHEC staff and the Georgia Ports Authority and the U.S. Army Corps of Engineers, effectively shutting out the Savannah River Maritime Commission on Nov. 10.

DHEC staff had initially denied the water quality certification sought by the corps on Sept. 30. But on Nov. 10, staff recommended the board approve the permit. The board promptly did so, drawing outrage from South Carolina legislators.

In February, a corps spokesman took issue with a media report’s earlier characterization that lumped the corps into the negotiations with DHEC staff that produced the November settlement.

“The state of Georgia offered concessions, not the Corps of Engineers,” corps spokesman Billy Birdwell wrote in a February e-mail. “This may seem minor, but it is not. The Corps of Engineers was not part of the agreement between the two states.”

On Tuesday, Toal and others pressed DHEC attorney John Harleston.

“What you ask is to be rewarded for disobeying the requirements of law that you at least involve in some way the Maritime Commission when you made the ultimate decision,” Toal told Harleston.

“You disobeyed the law when you did not involve the Savannah Maritime Commission in a settlement of this matter. … I think everybody agrees with that.”

He responded: “We, of course, do not agree with that.”

“The staff didn’t just negotiate in a vacuum,” said Harleston. “The staff, based on extensive review it had already done, and identified the issues and concerns, informed the corps, ‘These are the things you need to do if you want to get a certification.’ ”

In making her point, Toal repeatedly quoted the law the state Legislature passed that created the Savannah River Maritime Commission and gave it the authority to “represent” South Carolina in all matters related to “navigability, depth, dredging,” and other river activities. The law also said the commission was “empowered to negotiate on behalf of the state” and “enter into agreements” with Georgia and the corps.

Justices also stressed that the law says the commission’s decisions legally bind the state, and that they trump other state agencies in specific instances.

But Harleston said the commission wielded no authority over a 401 Water Quality Certification or a navigable waters permit for Georgia’s harbor deepening.

Toal asked what role the commission has.

Harleston answered that a “perfect situation for negotiating that’s got nothing to do with permitting” would be for the commission to work with the corps to release the easements on the proposed Jasper Ocean Terminal site.

On Tuesday, Toal also warned against a simple ruling.

“Were we to simply decide that DHEC acted illegally, what we’d do is expose the state to having the claim successfully made that the state has waived its ability to do anything about this, and that these parties can go ahead and dredge the Savannah River without any input at all from the state of South Carolina,” she said. “Isn’t that what we risk if we decide simply that?”

The court issued no decision Tuesday and has no deadline to do so.

Jurisdictional tug-of-war has been a recurring theme in the battle over deepening the Port of Savannah, a $653 million project aimed at accommodating larger Post-Panamax vessels in 2014.

On Feb. 27, Gov. Nikki Haley vetoed H. 4627, a bill the S.C. Legislature had passed that suspended DHEC’s authority over the dredging of the Savannah River and other activities lawmakers had assigned to the Maritime Commission in 2007. The joint resolution particularly targeted the construction in navigable waters permit the DHEC board had awarded the corps in November.

By March 1, both houses of the Legislature had overridden Haley’s veto.